Court of Appeal ruling boosts bar’s direct access scheme

The Court of Appeal has awarded thousands of buy-to-let landlords refunds on nearly three years of mortgage overpayments, in the biggest case yet brought through the bar’s direct access scheme.

The two-and-a-half-year legal battle was conducted without any solicitor intermediaries involved, marking a landmark moment for the Bar Council, which is pushing to raise awareness about the benefits of instructing barristers directly.

Chantal-Aimée Doerries QC (pictured), chairman of the bar, said the case shows direct access ‘can be an effective means for resolving disputes’.

She added: ‘The clients in this case were able to go directly to the specialist barristers for the representation they needed to bring this action.

‘There is no reason why in other appropriate cases representation cannot be on this basis. Direct access continues to grow and now it is easier than ever for the public to find those barristers qualified to do this kind of work.’

The case centred on whether West Bromwich Mortgage Company, a subsidiary of West Bromwich Building Society, could increase the rate payable for buy-to-let ‘tracker’ mortgages by 1.99%, without any change in the Bank of England base interest rate.

The Commercial Court initially rejected an attempt to reverse the increase in 2015, but the Court of Appeal unanimously overturned the judgment and ruled that West Bromwich could not impose the charges.

Mark Smith, head of chambers at Cotswold Barristers, which led the legal action, said: ‘I am very happy with the outcome, and happy for the many members of the campaign who have never lost faith in the case.

‘Several other lenders have tried the same sort of tactic, and we will now be reviewing those cases in the light of this judgment.’

Law Society chief executive Catherine Dixon said: 'In the context of the range of work that can be undertaken by solicitors, very few cases are appropriate for direct access barristers, who cannot undertake aspects of work integral to the conclusion of many cases.

'While clients can instruct barristers directly and have been able to do so for some time, solicitors provide a wider range of services, often help clients avoid court proceedings in the first place, and can navigate clients through the litigation process for those cases that do go to court.'

The Bar Council’s third-party escrow account, BARCO, was used to protect the clients’ funds in the case.